Parliament - A legal opinion faulting Communications Minister Faith Muthambi for allowing the unprocedural removal of SABC board members on Tuesday left MPs at odds over how to rein in the minister and reverse the process.
The opposition suggested that the process be taken out of the minister’s hands entirely and the three board members - Hope Zinde, Rachel Kalidass and Ronnie Lubisi - to be informed that they were allowed to resume their duties on the embattled board.
Democratic Alliance MP Gavin Davis proposed that the portfolio committee on communications write to the three to this effect.
“The legal opinion states that this process does not belong in the minister’s hands, so why should she be involved?” he added.
Failing that, the committee should defer the matter to President Jacob Zuma, the only authority who may appoint or remove members of the SABC board, in a view confirmed by parliamentary legal advisors in a five-page opinion read out to members on Tuesday.
The Economic Freedom Front’s Mbuyiseni Ndlozi said the matter must now be referred to the board and the presidency “because those are the relevant stakeholders”.
“The legal opinion says it was unlawful. We agree that this legal opinion applies to the situation,” he said, adding that there was no real need for futher engagement with Muthambi.
“It looks like we have already heard her opinion. So she is probably going to repeat what she has said. So I don’t see the significance of that step except courtesy. We must not arrive in a meeting thinking that we are going to change our resolution, that would be a crisis, we must stand our ground.”
But the ANC majority on the portfolio committee on communications argued that this was inappropriate and that Muthambi should be part of any decision on the way forward.
“The minister must be called and come here and advise on the course to be taken because the SABC reports to the minister,” said ANC MP Moses Tseli.
Davis said this statement pointed to the extent of a fundamentally wrong perception of the extent of Muthambi’s powers over the public broadcaster.
Committee chairwoman Joyce Moloi-Moropa resolved to ask Muthambi for her view of the adverse legal opinion and invite her to appear before the committee should she want to. She stressed that all political parties accepted the legal opinion.
“We need to find a way forward and we need it to be a very proper one. I am going to send this to the minister and ask whether she accepts it. If the minister wants to come and also speak on this matter, we can allow it. We can only escalate to the presidency if required,” she said, adding that MPs should therefore be ready to be summoned to an urgent meeting with Muthambi.
The legal opinion submitted to the committee on Tuesday, appeared to settle a two-month long tussle over the whether Muthambi was within her rights when she told the committee on March 17 that the SABC board had acted appropriately when it sacked Zinde. She said the board had the power to remove a member provided it followed the proper procedure. Shortly afterwards, two more board members, Rachel Kalidass and Ronnie Lubisi, were sacked in similar fashion.
Muthambi justified the step by invoking the Companies Act, saying it lent her the authority to draft a memorandum of incorporation which changed the rules of the game with regards to the SABC.
Shortly after her appearance before the committee, two more board members, Kalidass and Lubisi, were sacked in similar fashion. This brought the number to current vacancies on the board to six, meaning it lacks a quorum to take decisions.
Parliamentary legal advisor Nathi Mjenxane told the committee that any process which circumvented the Broadcasting Act, according to which only the president had the power to remove board members, was unlawful.
“Any removal of a SABC board member that is not effected in line with the provisions of the Broadcasting Act as stated above is invalid and therefore unlawful.”
He said by law, members may be removed by the “appointing body” and only after the board had conducted a due inquiry and found either misconduct or an inability to perform the required functions.
“The SABC board has no legal competency to arbitrarily remove a member of the board,” he added. Mjenxane further stated that the enquiry may not be conducted by the board itself — as Muthambi suggested the board had rightfully done in the case of Zinde.
On the matter of the interplay between the Broadcasting Act and the Companies Act, the legal opinion also contradicted Muthambi’s view.
Mjenxane told the committee that in case of a contradiction between the two laws, the Broadcasting Act would apply as it was more specific to the subject of the SABC. Muthambi had suggested the Companies Act would trump it, then last week back-tracked slightly, saying its provisions would come into play if there were gaps or grey areas in the Broadcasting Act.
The legal opinion was requested by the committee immediately after Muthambi appeared before it in March, and was completed in April and handed to Moloi-Morapa, who first sent it to Speaker Baleka Mbete before submitting it to the committee.
Its conclusions raises a futher question as to whether Muthambi had been justified in sweeping powers Muthambi gave herself to appoint top level staff at the SABC.
Her decision to confirm the appointment of Hlaudi Motsoeneng despite adverse findings against him by Public Protector Thuli Madonsela is being challenged by the DA in an ongoing legal battle.
ANA